HKSAR v. WONG MUN MING

CACC 130/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 130 OF 2015

(ON APPEAL FROM DCCC 740 OF 2014)

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REASONS FOR JUDGMENT

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Hon McWalters JA (giving the reasons for judgment of the court):

Introduction

1.  The appellant was charged with one count of Causing Death by Dangerous Driving, contrary to section 36(1) of the Road Traffic Ordinance, Cap 374.

2.  On 24 March 2015, the appellant appeared before Judge Gary Lam (“the judge”) in the District Court and pleaded guilty to this charge.  On 31 March 2015 the judge sentenced the appellant to 20 months’ imprisonment, and made an order disqualifying him from holding or obtaining a driving licence for a period of 6 years.  He further ordered the appellant to complete a driving improvement course at his own expense within the last 3 months of his disqualification period.

3.  On 20 April 2015, the appellant filed an application for leave to appeal against sentence and indicated his application was solely in respect of the length of the disqualification order.  Leave was granted by McWalters JA (sitting as a single judge) on 18 September 2015. 

4.  On 6 October 2015, the appellant made a further application for leave to appeal against the whole of his sentence out of time.  However, this application was abandoned by a letter to the Court dated 4 December 2015 and confirmed by the appellant at the hearing.  Consequently, the appeal dealt with the disqualification order only.

5.  At the hearing of the appeal we allowed the appeal, set aside the order of the judge disqualifying the appellant from holding or obtaining a driving licence for a period of 6 years and in its place made an order disqualifying the appellant from holding or obtaining a driving licence for a period of 5 years.  We said we would hand down our reasons for so deciding at a later date and this we now do.

The background to the offence

6.  The motor vehicle accident occurred at Lung Fu Road, Tuen Mun on 11 January 2014.  At 1155 hrs on that day, the appellant was driving a tractor with a trailer along Lung Fu Road which consists of a two lane road in both directions and has a concrete central divider separating the two sides of the road. 

7.  The speed limit in this area is 70 km/hour but the section of the road on which the appellant was driving contains a bend and there existed, in three separate locations, road signs indicating the upcoming bend with the last two signs also containing the direction “Reduce Speed Now”.  In addition there were two road markings requiring drivers to slow down as they approached this bend. 

8.  The Summary of Facts which the appellant admitted for the purpose of sentencing contained the following:

“… there is a ‘sharp left bend’ of the road ahead and thus speed should be reduced immediately (otherwise the vehicle might skid) and yet the Defendant in need of reducing the speed, he did quite the contrary that he was travelling in a speed well over the prescribed limited / as evidenced by the yaw marks.”[1]

9.  Thus, instead of slowing down as he approached this bend the appellant in fact increased his speed to what a forensic scientist estimated to be 80 km/hour. As the appellant negotiated the bend he lost control of his tractor and the trailer toppled over the central divider and onto the opposite bound lane.  As it did so it dragged the tractor over the concrete central divider and into incoming traffic travelling in that opposite lane. 

10.  The deceased, who was 69 years old, was driving a trailer in the opposite incoming traffic lane and as a result of the collision with the tractor of the appellant’s vehicle, suffered severe and extensive multiple injuries from which he died at the scene. 

11.  The road surface was in good condition in that it was smooth, flat and normal.  A maintenance structural engineer of the Highways Department inspected the construction joints of Lung Fu Road and found no unevenness in those joints in the relevant section of the road and the only explanation for the accident was the appellant’s excessive speed.  His speed was excessive not just in terms of the speed limit for that road which, as we have said, was 70 km/hour, but it was excessive in terms of the particular bend that he was negotiating at the time of the accident.  This bend was such that he should have slowed down below 70 km/hour in order to drive safely through it.  

12.  When interviewed under caution the appellant claimed he was driving at only 55-60 km/hour and that it was the unevenness of the road which caused the accident.  He also admitted knowing that the speed limit is 70 km/hour and further admitted that he had not noticed any of the traffic signs on both sides of the road and the road markings on the road surface of the road.

13.  At the conclusion of the Summary of Facts the appellant admitted that the manner of his driving at the time of the accident was dangerous, in that he was travelling at a speed well over the prescribed limit “in contravention and against all the warning traffic signs.”[2]

The mitigation

14.  In mitigation, counsel for the appellant, in addressing the culpability of the appellant’s driving, submitted that the appellant had a good traffic record, the vehicle he had driven was not overweight and there was no consumption of alcohol involved.  It was accepted by counsel that although the speed limit at the section of the road was 70 km/hour, the appellant should in fact have driven at a much slower speed in conformity with the traffic signs and road markings if he was to properly control his vehicle and safely negotiate the bend.  Counsel for the appellant submitted that the accident occurred because, over the course of what was only a brief moment in time, the appellant made an error of judgement in deciding to negotiate the bend in the road at a speed higher than was reasonable. 

15.  He also referred to the impact of the accident on the appellant himself, namely the injuries he had suffered in the accident. The appellant was still on sick leave and medical reports were submitted on his behalf.  Additionally, the appellant was remorseful for the consequences to the deceased’s family and he felt that he dared not drive again. 

16.  In terms of his own family the appellant had a one and a half year old son.  A number of mitigation letters from the appellant, his wife, his employer at the time of the accident, his former employer, friends and colleagues were also submitted to the court.

17.  In respect of the sentence that the court should impose on the appellant, his counsel reminded the court that a term of imprisonment for a traffic accident is in itself a very harsh punishment and submitted that a starting point of 2 to 3 years’ imprisonment was appropriate, given that the case was not serious and the aggravating factors as set out in R v Cooksley [2003] 3 All ER 40 were not present. Counsel for the appellant also referred the court to the case of HKSAR v Lei Tin Seng [2011] 1 HKLRD 341 and submitted that, as in that case, the appellant did not have the intention to drive irresponsibly and dangerously over a long period of time. 

18.  No submissions were invited or advanced in respect of the period of disqualification.  Nor did the judge ever indicate to counsel that he was contemplating making a disqualification order in excess of the period of 5 years that is stipulated by the statue as, absent special reasons, the minimum period for which a disqualification order should be made. 

The Reasons for Sentence

19.  The judge noted that the appellant had four traffic convictions in 2011 but as they related only to vehicle maintenance he treated the appellant as being a person with a clear traffic offence record. The judge referred to mitigation letters that had been placed before him and the submissions the appellant’s counsel had advanced on his behalf.

20.  The judge then referred to the case of SJ v Poon Wing Kay [2007] 1 HKLRD 660 and noted the guidance it provided in assessing the culpability of an offender and the importance of having in mind the need for the sentence to have a deterrent effect.  He also referred to the Lei Tin Seng case and quoted relevant passages from it. 

21.  The judge said that for the purposes of sentencing he would treat the appellant as a law-abiding citizen with a good driving record and said he understood the traumatic effect that a prison term would have on the appellant and his family.

22.  However, the judge regarded the offence as a serious one and said there was a need for the court to “send a clear message to the general public that motor vehicles can be lethal and that drivers must shoulder the responsibility for their acts on the road”.

23.  The judge accepted that the case did not fall within the higher culpability category as set out in the case of R v Cooksley [2003] 3 All ER 40 but the judge could not overlook what he described as “the defendant’s flagrant disobedience of traffic signs and road markings for reducing speed.”

24.  The judge adopted a starting point of two and a half years’ imprisonment and gave a full one-third discount for the appellant’s plea of guilty.  By this route he arrived at the final sentence of 20 months’ imprisonment.

25.  The judge then went on to make a disqualification order for 6 years and an order that the appellant complete a driving improvement course at his own expense within the last 3 months of his disqualification period.  Finally, the judge said that, in his view, it was unnecessary for the appellant to re-take his driving licence test.

26.  The judge added two footnotes when making the disqualification order so that the relevant passage from his Reasons for Sentence appears as follows:

“In addition to imprisonment, I make a disqualification order for a period of 6 years^FN1 (the disqualification period will start to run from the date of sentencing^FN2).”

In the first footnote the judge said:

“Section 36(2) and (2A) of the Road Traffic Ordinance (Cap.374) stipulates a mandatory disqualification period of not less than 5 years in the case of a 1^st conviction. I have taken into account of the defendant's prison term in order to [sic] the 5-year disqualification period its true effect.” [Emphasis added.]

In the second footnote the judge said:

“Since the defendant has no previous conviction of a ‘scheduled offence’, by virtue of section 69A(1)(b) of Cap.374, the entire section 69A does not apply. Hence, the court has no power to order the disqualification period not to start to run until he finishes serving his prison term.”

The grounds of appeal against sentence

27.  The appellant’s Perfected Grounds of Appeal against Sentence contains only one ground of appeal, namely that the 6 years’ driving licence disqualification period imposed on the appellant is manifestly excessive and asks this court to reduce it to 5 years.  In his written submissions his counsel, Mr Michael Leung, notes that the judge did not specify how the period of 6 years was arrived at and argues that as the effect of it would be to prohibit the appellant from driving for a period of 4½ years after his release from gaol, it is excessive.

28.  Mr Leung relies upon the case of HKSAR v Chan Kim Ching CACC 69/2014, unreported, 26 November 2014, to submit that as disqualification orders should be preventative as opposed to punitive, for drivers with a good driving record who commit the offence out of a momentary misjudgement, the duration of a disqualification order should only be 2 years.  In reliance on what was said by the Court of Appeal in this case he argued that a period of six years’ disqualification is manifestly excessive.

Discussion

29.  Before considering the relevant case law it is necessary to have regard to the statutory framework. 

30.  Disqualification orders are provided for in section 36(2) and (2A) of the Road Traffic Ordinance, Cap 374 for the offence of dangerous driving causing death.[3] The effect of these provisions is to lay down a sentencing starting point, namely that a disqualification order be made and that for a first offender whose offence does not involve any “circumstances of aggravation”[4] the order of disqualification be for a minimum period of 5 years.  But, it is important to emphasise that this is only a starting point and it is one from which the judge may depart upon being satisfied of the existence of “special reasons”.  If the court determines that there exists “special reasons” it can either not make an order at all or may make an order for a shorter period.

31.  The ordinance provides a definition of “special reasons” which is as follows:

“special reasons (特別理由) means special reasons relating to the offence, and in exceptional circumstances special reasons relating to––

(a) the offender; and

(b) such other circumstance that the court or magistrate may consider to be relevant;”

32.  Thus, there still exists a judicial discretion, albeit a somewhat constrained one, not to make a disqualification order or to make one for a shorter period.  It is wrong to characterize the effect of these provisions as compelling a court to make a disqualification order for at least 5 years. Neither the making of an order nor the making of one for 5 years is mandatory. Nor do we agree with the use of the word “norm” to describe the effect of the legislation for it tends to encourage a mindset that an order has to be made and that the duration of the order has to be 5 years.  That is simply not so.  They are merely the starting points for the judicial officer who continues to have a sentencing discretion which entitles him to depart from these starting points on special reasons being shown.

33.  Consequently, the judicial officer should turn his mind to the question of whether there exists in the case before him any special reason relating to the offence or, in exceptional circumstances, any special reason relating to the defendant himself or to any other relevant circumstance, for not making a disqualification order or for making one for a period shorter than 5 years. 

34.  Precisely because this sentencing discretion exists it is important that judicial officers invite submissions on how the discretion should be exercised.  The invitation should be both as to whether an order should be made and if it should, the duration of it.  We endorse the following summary of the legal principles by the authors of Sentencing in Hong Kong, 7^th edition at page 213:

“If a court has a discretion to order disqualification, and sometimes it is obligatory, the accused should be alerted if this is in contemplation so that he can make submissions: R v Emmins (1995) 16 Cr App R (S) 63, 65. If this does not happen, the offender who is disqualified may be left with ‘a genuine grievance’: HKSAR v Tin Fung [2000] 4 HKC 241, 242. When disqualification is otherwise mandatory, the accused ought also to be given the opportunity to address the court upon the question of special reasons: Barnes v Gevaux (1980) 2 Cr App R (S) 258. As a matter of common sense, the accused should also be heard on the issue of the length of the disqualification period, over and above the statutory minimum term.”

35.  Of course, the statutory provisions only lay down a minimum period of disqualification and so the judicial officer is entitled to order a period of disqualification greater than 5 years.  But whatever order the judicial officer makes he is obliged to provide reasons for it and this is especially important where he makes a disqualification order in excess of the 5 years stipulated minimum statutory period.

36.  We cannot emphasise enough that defence counsel must be prepared to make submissions on these issues on their client’s behalf.  It is an important part of a defence counsel’s duty to his client to seek and obtain clear instructions on these issues in advance of the hearing so that he is in a position at the hearing to protect and advance his client’s interests.  The situation should not arise, as happened here, that the first occasion these submissions are made is before the appellate court.

37.  Before leaving the statutory framework there is another important provision that we should mention and that is section 69A of Cap 374.  This is a provision which only applies to recidivists[5] and the effect of section 69A(2) is to compel the court making the disqualification order to further order that it will not commence to run until after the expiry of any prison sentence imposed on the offender unless the court finds that there exists special reasons for not so ordering.  The consequence of this provision is that, absent special reasons, the operation of the disqualification order is deferred until the offender is released from prison.  Thus the period spent in prison will not have the effect of reducing the period of disqualification the offender will have to undergo.

38.  Such a provision is lacking from the regimes in sections 36 and 36(A).  Under those regimes the disqualification order takes effect from the date it is made and so, for example, a person against whom a 5‑year disqualification order is made, if sentenced to 3 years imprisonment, will, in reality, have to undergo a period of disqualification of only two years from the date of his release from prison.[6]

39.  Given the provisions of section 69, it is clear that the legislature has made a deliberate decision to distinguish between first offenders and repeat offenders in the manner in which the disqualification regime will operate.  It was recognized by the legislature that the safety of the public was more clearly at risk with a repeat offender and that in respect of such an offender it was a legitimate policy objective to not allow the prison sentence to have the effect of reducing the period of disqualification that such an offender would undergo.  The fact that a similar provision was not inserted into sections 36 and 36A reflects a considered judgment by the legislature that such a provision was not necessary for first offenders even if that meant once restored their liberty they might not ultimately have to undergo the full period of disqualification set out in the court order.  

40.  Other legislative reform resulted in the minimum disqualification period being increased from two years to five years and this no doubt reflects a view by the legislature that disqualification orders should be seen as an important element of the sentencing regime and should be given greater prominence in the sentencing process than had hitherto been the case.  The effect of these reforms is that unless there exists special reasons for not making an order or not making one for the stipulated period, every offender should undergo a substantial period of disqualification.  This is hardly surprising given that the offence requires that the quality of the driving be dangerous and that the driving causes the death of a person.

41.  Within this statutory framework it is apparent that the legislature recognized that an offender could be ordered to be disqualified for less than 5 years, or not at all, and that the actual period of disqualification that an offender would have to undergo would be reduced by the period of his imprisonment.  In our view the legislative purpose that is apparent from the different regimes for first and repeat offenders is that it will be for the courts to decide the appropriate period of disqualification that a first offender will have to undergo after his release from prison.  This will be a matter of sentencing discretion to be exercised in accordance with legal principles developed by the appellate courts.  Trial courts should not, therefore, view the term of imprisonment to which they sentence an offender as in some way defeating the intention of the legislature in respect of the statutory disqualification period.

42.  In the present case the judge inserted footnotes for the purpose of assisting the reader to understand why he determined 6 years to be the appropriate period of disqualification.  In these footnotes he used the word “mandatory” to describe the 5-year minimum period set out in section 36(2A) and he also referred to section 69A not being applicable thereby depriving the court of the power to order that the disqualification period start to run after the appellant had served his sentence.  He also said: “I have taken into account of the defendant’s prison term in order to the 5-year disqualification period its true effect.”  These footnote comments suggest that the judge felt he had to achieve a post‑release from prison disqualification period as close as possible to the 5-year minimum period.  By imposing a disqualification order of 6 years the judge achieved a post-release from prison disqualification period of 4 years 4 months, as opposed to 3 years 4 months had he ordered a 5-year disqualification period.

43.  In his helpful submissions on behalf of the respondent, Mr Andrew Li, Senior Public Prosecutor, contended that the factors relevant to the determination of the level of the defendant’s culpability are most relevant to fixing the length of the disqualification period and the judge should have focused more on the appellant’s culpability (which, in terms of the Cooksley categories, the judge had assessed to be at the intermediate level) and less on striving to give effect to the minimum term.  However, he saw this as a question of emphasis, rather than error, by the judge.  He argued that had the judge given emphasis to the culpability of the appellant he would still have concluded that a period of disqualification of 6 years was appropriate.

44.  We agree with Mr Li that culpability is the key factor and that the judge did not have sufficient regard to it in assessing the length of the disqualification order.  He allowed himself to be overly influenced by the statutory 5-year period which he regarded as a minimum term.  In this respect he erred and so it now becomes necessary for us to consider afresh the appropriate disqualification order that should be made.

45.  The sentencing principles that underly disqualification orders are well established.  The following summary of them is taken from the decision of this court in Secretary for Justice v Hung Ling Kwok [2010] 4 HKLRD 365:

(i) The main purpose of disqualification is “forward looking and preventative rather than backward looking and punitive”.[7] It is designed to protect road users in the future from an offender who had shown himself to be a real risk on the roads.

(ii) The risk represented by the offender is reflected in the level of culpability which attached to his driving, so that matters relevant to fixing the length of the driving disqualification are more or less the same as those factors relevant to determining the term of imprisonment.

(iii) Where the term of the imprisonment and the period of disqualification are to run concurrently (as will always be the case for first offenders), then the period of disqualification must be longer than the prison term for it to have any real significance or meaningful effect.

(iv) Where a prison term is imposed it is the length of the actual sentence to which regard must be had when determining the appropriate length of the disqualification order.  The court should not try to anticipate the earliest release date of the defendant should he be granted remission of sentence due to his good conduct in prison.  It is the relationship between the term of imprisonment and the period of disqualification that is relevant.

46.  Applying these principles to the present case the court’s starting point is that, absent special reasons, a disqualification order should be made and the duration of the order should be 5 years.  The appellant does not contend that there exists special reasons in relation to the making of an order and we agree with this concession.  Thus, there is no basis for not making a disqualification order. That being so the only issue is the duration of the order.  The appellant also does not contend that there exists special reasons for making an order shorter than 5 years but does contend that there is nothing to be found in the appellant’s past driving history or his culpability for this offence which warrants the making of an order longer than 5 years.  The appellant simply asks us to set aside the order of the judge and in its place make an order disqualifying the appellant for 5 years.

47.  The appellant relies upon the comments of this court in HKSAR v Chan Kim Ching, CACC 69/2014 unreported, 26 November 2014.  This case concerned the offence of dangerous driving causing grievous bodily harm and involved a defendant who drove away soon after his car was stopped by police, thereby injuring the police officer.  A disqualification period of 6 years that was to run from the date of release from prison was reduced to 3½ years.   In the course of its judgment the court had regard to periods of disqualification approved by the English Court of Appeal in its decision in Cooksley.[8]  In Chan Kim Chung the court said at paragraph 34:

“ The above case of Cooksley made the following suggestions about the length of disqualification:

(1) Shorter bans of two years or so will be appropriate where the offender has a good driving record and the offence resulted from a momentary error of judgment;

(2) Longer bans, between 3 and 5 years, will be appropriate where, having regard to the circumstances of the offence and the offender’s record, it is clear that the offender tends to disregard the rules of the road, or to drive carelessly or inappropriately;

(3) Bans between 5 and 10 years may be used where the offence itself, and the offender’s record, show that he represents a real and continuing danger to other road users; and

(4) Disqualification for life is a highly exceptional course, but may be appropriate in a case where the danger represented by the offender is an extreme and indefinite one.”[9]

48.  The Cooksley periods of disqualification were based upon a statutory context where the minimum disqualification period is only 2 years.  It is difficult to believe that that statutory context did not influence the court in the periods of disqualification it determined were appropriate for the different levels of culpability.  Given that Hong Kong’s statutory minimum is now 5 years the issue remains open for argument on another occasion as to whether the Cooksley disqualification periods still have relevance to Hong Kong. 

49.  For the purpose of deciding this appeal we are content to rely on general principles.  Although the judge assessed, and in our view correctly, the appellant’s driving as falling into the intermediate level of culpability, he did so on the basis of an isolated episode of driving. There was nothing adverse in the appellant’s driving history nor was there any evidence that on the day of the accident the appellant had been driving dangerously over a long period of time.  No explanation was provided for why the appellant drove in the way he did and so the court had only the bare facts that as the appellant approached this bend in the road he increased his speed so that he was driving well in excess of what would be safe in the circumstances and he did so in flagrant disregard of all traffic signs and road markings.  In doing so he killed another road user and severely injured himself.

50.  There is nothing in the circumstances of the offence or of this offender which constitutes a special reason for making a disqualification order for a period of less than 5 years.  The question then arises of whether there is any reason to depart from the starting point of 5 years and order a longer period of disqualification.  Answering this question requires an assessment of the risk posed by the appellant to persons using the roads should he be allowed to drive again.

51.  Given the culpability of the appellant’s driving he undoubtedly poses a risk to other road users but, in our view, it is not a high one.  It cannot be said that his driving on this one occasion shows that he represents “a real and continuing danger to other road users.”  But neither was his driving on this occasion simple momentary inattention.  The flagrance of his disregard for the road signs and road markings in conjunction with his increasing his speed when it was clearly dangerous to do so, reflected a willingness to drive carelessly or inappropriately with reckless indifference to the safety of other road users.  However, the appellant, through all that he has endured, namely the trauma of the accident, his personal responsibility for the death of another, the injuries to himself and his incarceration, will have had brought home to him the consequences of his actions.  Disqualification will reinforce that and make him realise that a driving licence is a privilege, not a right, and that very grave responsibilities accompany that privilege.

52.  The risk that the appellant poses to others will be the primary concern of the court.  But where the defendant is a professional driver who needs his licence to earn a living and to provide for those who are dependent upon him the court cannot ignore the additional hardship that disqualification will cause him.  For such a person, and his dependents, any period of disqualification is a hardship, indeed from his point of view, it is an additional punishment. 

53.  A sentence of 20 months’ imprisonment in conjunction with a 6-year disqualification period means the appellant will be disqualified for 4 years 4 months after leaving prison.  In our view this is, in all the circumstances, excessive.  A 5-year disqualification order will prevent him from driving for a period of 3 years 4 months after his release from prison.  This is far more commensurate with the level of culpability of his driving and the risk he poses to the public.  Furthermore, it allows him the prospect of returning to a driving career within a reasonable period of time should he wish to do so.

Conclusion

54.  For these reasons we allowed the appeal, set aside the order of the judge disqualifying the appellant from holding or obtaining a driving licence for a period of 6 years and in its place made an order of the same nature but for a period of only 5 years.  For the avoidance of doubt we did not interfere with any of the other orders that the judge made in sentencing the appellant.

[1] Yaw marks measuring 38 metres and 14.2 metres long were found behind the appellant’s tractor / trailer on the offside of the second lane of Lung Fu Road.

[2] Summary of Facts, paragraph 12.

[3] A similar regime exists for the offence of dangerous driving causing grievous bodily harm but with a lower minimum disqualification period – see section 36(A) of the Road Traffic Ordinance, Cap 374.

[4] Essentially the absence of alcohol or drugs in the commission of the offence.

[5] If the re-offending does not occur within 5 years of the first offence then the court has a discretion to treat the defendant as a first offender – see section 69A(3).  

[6] This leaves out of the equation a release earlier than 3 years for good conduct whilst in prison which would have the effect of increasing the period of disqualification the offender would have to undergo once released back into the community.

[7] R v Cooksley [2003] 3 All ER 40 at 54f-h

[8] R v Cooksley [2003] 2 All ER 40 at paragraph 42.

[9] This judgment is in Chinese and there is no official English translation of it.  The translation quoted was rendered by the appellant’s legal representatives.